Citation NR: 9732098
Decision Date: 09/22/97 Archive Date: 09/29/97
DOCKET NO. 95-10 868 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder (PTSD), currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The veteran had active service from November 1966 to November
1968.
This matter comes before the Board of Veteran’s’ Appeals
(Board) from a March 1994 rating decision by the RO which
denied service connection for a right knee disorder, a liver
disorder, diabetes, and a pancreatic disability. The RO also
granted service connection for PTSD and assigned a 50 rating
for that disorder. In a rating decision of September 1995,
the RO denied service-connection for kidney disease.
In June 1997, the veteran appeared and gave testimony at a
hearing at the RO before a member of the Board, a transcript
of which is of record. At this hearing the veteran withdrew
from appellate consideration the issues of service connection
for diabetes mellitus, a right knee disorder, a liver
disorder, a pancreas disorder and a kidney disability.
Accordingly, these issues are not before the Board for
appellate consideration at this time.
At the June 1997 hearing the veteran also raised the issue of
secondary service connection for hypertension. This issue
has not been developed and certified for appeal and is
referred to the RO for all appropriate action.
The veteran has also raised the issue of entitlement to a
total rating for compensation purposes based on individual
unemployability in documents filed on the day of the Board
hearing at the RO on June 18, 1997. This issue is
inextricably intertwined with that of an increased rating for
PTSD, but it has not yet been adjudicated by the RO. The
Board will incorporate instructions regarding this issue with
the remand discussed below.
REMAND
The RO last considered the issue of an increased evaluation
for the veteran’s PTSD in a rating action of December 1995.
The VA schedular criteria for rating mental disorders were
revised in November 1996. The United States Court of
Veterans Appeals (Court) has held that, where the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial process has been
concluded, the version most favorable to the veteran will
apply. Karnas v. Derwinski, 1 Vet.App. 308 (1991). The RO
has not considered the veteran’s claim for an increased
rating for his service-connected PTSD in light of the revised
rating criteria. Additionally, the most recent VA
psychiatric examination in May 1995 classified the veteran’s
PTSD as severe. However, it was not in complete compliance
with what the Court required in Massey v. Brown 7 Vet.App.
204 (1994).
Accordingly, this case is again remanded to the RO for the
following actions:
1. The veteran should be afforded a VA
psychiatric examination to determine the
severity of his service-connected PTSD.
The claims folder must be made available
to the examiner so that the pertinent
aspects of the veteran’s psychiatric and
employment history may be reviewed. All
clinical findings should be reported in
detail and such tests as the examining
physician deems appropriate should be
performed. The examiner should identify
diagnostically all symptoms and clinical
findings which are manifestations of PTSD
and render an opinion for the record as
to the degree to which the specific
findings affect the veteran’s ability to
establish and maintain effective and
favorable relationships with people
(social impairment), and the degree to
which they affect his reliability,
flexibility and efficiency levels in
performing occupational tasks (industrial
impairment). See Massey v. Brown, 7
Vet.App. 204 (1994). The examining
physician should also be furnished a copy
of the revised VA general rating formula
for mental disorders (38 C.F.R.§ 4.130,
effective November 7, 1996), and, on
examination of the veteran, comment as to
the presence or absence of each symptom
and clinical finding specified therein
from 0 to 100 percent, and if present,
the frequency and degree of severity
thereof. The examiner must specifically
comment whether the service connected
PTSD results in the veteran being able to
obtain or retain employment (old
criteria) or whether the service-
connected PTSD produces total
occupational and social impairment (new
criteria).
2. Then, the RO should again adjudicate
the veteran’s claim for an increased
rating for PTSD on the basis of the
evidence of record and on the basis of
the veteran s entitlement to an increased
rating for PTSD under both sets of rating
criteria. If this benefit is not
granted, the veteran and his
representative should be provided with a
supplemental statement of the case and
afforded a reasonable opportunity to
respond. The RO should also adjudicate
the issue of entitlement to a total
rating for compensation purposes based on
individual unemployability. If this
benefit is denied and, after being
notified of the decision, the veteran
files a timely notice of disagreement, he
and his representative should be provided
a statement of the case in regard to this
issue and afforded a reasonable
opportunity to respond. The case should
then be returned to this Board for
further appellate consideration if
otherwise appropriate.
No action is required of the veteran until he is so informed.
The purpose of this remand is to obtain clarifying clinical
evidence to comply with a precedent decision of the Court,
and to insure that the veteran receives due process of law.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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